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Abstract

On June 1, 2010, the Supreme Court of the United States held in that the U.S. statute governing the sovereign immunity of foreign states, the Foreign Sovereign Immunities Act of 1976 (FSIA), does not cover the immunity claims of individual foreign officials. The Supreme Court's decision comes as the human rights advocacy community has increasingly challenged the jurisdictional immunity of states and their officials before the courts of foreign states in cases involving human rights violations. One legal argument frequently raised in order to bring a change in practice postulates that the rules on sovereign immunity are defeated when the violations amount to the breach of a peremptory norm of international law, or "jus cogens." This claim is featured prominently in several of the amicus curiae briefs submitted in where the petitioner has allegedly violated a rule of peremptory characternamely the prohibition of torture.

This article seeks to analyze the impact of peremptory norms of international law on immunity assertions. Does the breach of a jus cogens norm, i.e., a norm "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted" result in the loss of immunity of the state or its representative alleged to have violated the norm? This article first outlines the doctrine of foreign sovereign immunity and the notion of jus cogens. Next, it considers whether, under international law, an exception to the immunity of foreign states or foreign officials has emerged in cases involving jus cogens violations, and examines the arguments commonly raised to that effect. Finally, it undertakes an analysis of relevant U.S. case law involving jus cogens and foreign sovereign immunity, in an effort to explore how domestic courts in the U.S. have dealt with the issue and which trends can be expected in light of Samantar